Monday, November 19, 2012

Torture, Public Authority and the Pass Phrase

After pleading guilty to one count of conspiracy, five
counts of damage to computer systems, four counts of wire fraud, five counts of
access device fraud, and four counts of aggravated identity theft and being
sentenced to 20 years in prison, Albert Gonzalez “moved for habeas
corpus”. Gonzalez v. U.S., 2012 WL 5471799 (U.S. District Court for the
District of Massachusetts 2012).

(There
were actually two cases, with Gonzalez being sentenced to 20 years in prison by
one judge and to 20 years in prison “and one day” by another judge, both
sentences to run concurrently. Gonzalez
v. U.S., supra.)

As Wikipedia explains, 28 U.S. Code § 2241 gives federal
judges the power to issue “writs of habeas corpus to release
prisoners held by any government entity within the country from custody,
subject to certain limitations”. As
Wikipedia also explains, habeas corpus is a “writ (legal action) which
requires a person under arrest to be brought before a judge or into court” to
determine whether the person is being held lawfully. Andas Wikipedia notes, habeas corpus came to the
United States from England.

Gonzalez asserted that he was entitled to habeas corpus
relief on any or all of four grounds:

1) his guilty plea was induced by a
promise that his three cases would be heard by the same judge; 2) counsel
provided ineffective assistance by not presenting a public authority defense; 3)
counsel provided ineffective assistance by failing to file a motion to suppress
evidence allegedly obtained through torture; and 4) counsel failed to file a
notice of appeal after the petitioner requested such notice be filed.

`in four instances, namely, if the
petitioner's sentence (1) was imposed in violation of the Constitution, or (2)
was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory
maximum, or (4) was otherwise subject to collateral attack.’ David v. U.S.,134
F.3d 470 (U.S. Court of Appeals for the 1st Circuit 1998). . . .The
petitioner bears the burden of establishing the need for § 2255 relief, as well
as that of showing the need for an evidentiary hearing. . . . Summary
dismissal of a § 2255 claim is appropriate when the petition (1) is inadequate
on its face, or (2) although facially adequate, is conclusively contradicted as
to the alleged facts by the files and records of the case.

Gonzalez v. U.S.,
supra.

This is the factual basis for filing a motion to suppress,
according to Gonzalez:

Gonzalez alleges the following facts,
many of which are disputed. In 2003, following his arrest for access device
fraud, Gonzalez became a confidential informant for the U.S. Secret Service.
Between 2003 and 2008, he went on to commit a variety of computer crimes,
identity thefts, and fraud. Secret Service agents, including his primary
handler, Agent Ward, authorized Gonzalez to commit many of these criminal acts
as part of different covert operations, including operation `Shadow Ops.’ He
claims his crimes were designed to gain the trust and confidence of
international cyber-criminals.

In
2007, Secret Service agents worked in concert with the Turkish National Police
to arrest one of these international cyber-criminals, Maksym Yastremskiy, in
Antalya, Turkey. On July 25, 2007, the police seized a Lamborghini laptop
computer belonging to Yastremskiy. Unable to gain access to parts of the
laptop, on July 26, 2007, the police in Turkey tortured Yastremskiy until he
revealed the pass phrase. The laptop contained encrypted containers ultimately
inculpating Gonzalez in Yastremskiy's cyber-crime organization.

Gonzalez v. U.S.,
supra.

After Gonzalez was arrested (in 2008?), he asked the Secret
Service to call his

handlers to verify he was an active
confidential informant. After the agents ignored his claims, Gonzalez says he
explained to his attorneys that as an informant, he had been instructed and
authorized to engage in the illegal activity for which he was now being
prosecuted.

Sometime between May 2008 and early
July 2009, Gonzalez further informed his attorneys about the torture of Maksym
Yastremskiy. In response . . ., his attorney in New York, Rene Palomino, asked
whether Gonzalez's family had money to pay for the investigation expenses of
traveling to Turkey to investigate and interview witnesses. Palomino contacted Gonzalez's mother to ask
her if the family had money to pay for the expenses of this trip.

This conversation between Palomino and
Ms. Gonzalez took place in the first part of July 2009. After he discovered
neither Gonzalez nor his family could pay for an investigatory trip to Turkey, Palomino
informed Gonzalez that without an affidavit from Yastremskiy, he could not file
a motion to suppress the evidence. . . .

Gonzalez v. U.S.,
supra.

In his habeas petition, Gonzalez argued that his

his attorneys provided ineffective assistance of counsel by failing to file a motion to suppress evidence obtained
as a result of the TNP's alleged torture of a third party, Maksym Yastremskiy,
in Turkey. The government argues Gonzalez lacked standing to file the motion. .
. .

Gonzalez v. U.S.,
supra.

In addressing this argument, the district judge who has the
case explained that a

defendant generally does not have
standing to challenge evidence under the Due Process Clause simply because
government misconduct caused conscience-shocking harm to a third party. . . . Instead,
the limitations of the Due Process Clause only become relevant if the
government activity in question violates some protected right of the defendant,
such as the right to a fair trial. . . .

Courts have recognized that a
defendant's right to a fair trial could be violated if unreliable evidence,
such as a confession, is obtained through coercion of a third party. See,
e.g., Buckley v. Fitzsimmons, 20 F.3d 789 (U.S. Court of Appeals for the 7th Circuit 1994) (`Confessions wrung out of their makers may be
less reliable than voluntary confessions, so that using one person's coerced
confession at another's trial violates his rights under the due process clause.’).

Gonzalez v. U.S.,
supra.

Applying this standard, she then explained that Gonzalez

makes
no allegations that Yastremskiy's torture led to the recovery of unreliable
evidence. Instead, he alleges Yastremskiy's torture yielded an accurate
computer password that led to inculpatory information. A defendant cannot prove
prejudice without proving a reasonable probability of suppression. See Kimmelman
v. Morrison, 477 U.S. 365 (1986). Because he has not proved a
reasonable probability of suppression, Gonzalez fails to state a claim for
ineffective assistance of counsel.

Gonzalez v. U.S.,
supra.

Gonzalez also claimed his attorneys were ineffective “in
failing to present a public authority defense.” Gonzalez v. U.S., supra. Specifically,
he argued that “he was a confidential informant and as an informant, Secret
Service agents, including his primary handler, Agent Ward, authorized him to
commit the relevant criminal acts as part of operation `Shadow Ops.’” Gonzalez
v. U.S., supra.

The judge noted that the

public authority defense `applies where
the conduct of the defendant was undertaken at the behest of a government
official with power to authorize the [criminal activity].’ U.S. v. Cao, 471
F.3d 1 (U.S. Court of Appeals for the 1st Circuit 2006). This power must be
actual, because the “`”defense” of apparent public authority is . . . . not a
defense at all.’” U.S. v. Holmquist, 36
F.3d 154 (U.S. Court of Appeals for the 1st Circuit 1994).

Gonzalez v. U.S.,
supra.

She also noted that the 1st Circuit Court of
Appeals, whose precedents are binding on this court, “has made clear that
government agents do not have the power to unilaterally authorize
`extraordinary’ criminal activities which involve `severe financial loss to a
victim’ without obtaining written approval from the United States Attorney.” Gonzalez v. U.S., supra (quoting U.S. v.
Flemmi, 225 F.3d 78 (1st Circuit Court of Appeals 2000).)

The judge then explained that the

government contends Gonzalez caused
hundreds of millions of dollars in financial losses from the theft of over 40
million credit and debit card numbers involving companies like TJX and Dave and
Buster's. This was not disputed at sentencing. Gonzalez does not claim the
United States Attorney ever provided written authorization for the relevant
criminal activities.

Moreover, even if agents could have
authorized the conduct, Gonzalez's own factual assertions undermine his present
allegation that the agents authorized his criminal conduct underlying the crime
for which he was sentenced. Before being sentenced in the TJX case, Gonzalez
stated, `I'm guilty of not only exploiting computer networks but exploiting
personal relationships, particularly one I had with a particular agency who
believed in me.’ . . . He also said in his petition that the government did not
know of his involvement in Yastremskiy's cybercrime organization. . . [He] can't
have it both ways.

Gonzalez v. U.S.,
supra.

The judge therefore held that “[b]ecause Gonzalez fails to
demonstrate a viable public authority defense, the alleged failure of counsel
to present such a defense does not constitute ineffective assistance of
counsel.” Gonzalez v. U.S., supra.

For these and other reasons, she denied his petition for
habeas corpus relief. Gonzalez v. U.S., supra.